THE LEGAL SITUATION: 


The Right to Compete for Public 
Employment. 


A PAPER 


READ AT THE ANNUAL MEETING OF 

The National Civil-Service Reform League 

CINCINNATI, OHIO, DECEMBER 17, 1897, 

BY 

EDWIN BURRITT SMITH. 


NEW YORK: 

PUBLISHED FOR THE 

NATIONAL CIVIL-SERVICE REFORM LEAGUE. 
1897. 









Publications of the National Civil-Service Reform League 


Proceedings at the Annual Meeting of the National Civil-Ser¬ 
vice Reform League, 1882, with address of the President, George 
William Curtis. Per copy, 8 cts. 

The same, with address of the President, for ’84, ’85, ’86, ’87, 
’89, ’90, ’91, ’92, ’93, ’94 ’95, ’96 and ’97. Per copy, 8 cts. 
Civil-Service Reform under the present National Administration- 

By George William Curtis. (Address of 1885.) 

The Situation. By George William Curtis. (Address of 1886,) 

Party and Patronage. By George William Curtis. (Address of 1892.) 
Civil-Service Reform and Democracy. By Carl Schurz. (Address 
of 1893.) 

The Necessity and Progress of Civil-Service Reform. By Carl 
Scuurz. ( Address of 1894.) 

Congress and the Spoils System. By Carl Schurz. (Address of 1895.) 
Encouragements and Warnings. By Carl Schurz. (Address of 1896.) 
The Democracy of the Merit System. By Carl Schurz. (Ad¬ 
dress of 1897,) • 

Civil Service Reform as a Moral Q,uestion. By Charles J. Bonaparte. 
(1890.) 

The Influence of the Spoila Idea upon the Government of 
American Cities. By^Herbert Welsh (1894.) 

The Reform of the Consular Service. By Oscar S. Straus. (1894.) 
The Interest of the Workingman in Civil-Service Reform. By 

Herbert Welsh. (1895.) 

Tne Appointment and Tenure of Postmasters. By R. H. Dana. 

(1895-) 

The Republican P^u’ty and Civil-Service Reform. By Henry 
Hitchcock. (1897.) 

The Democratic Party and Civil-Service Reform. By Moorfield 
Storey. (1897 ) 

An open Letter to Hon. C. H. Grosvenor, in reply to recent at¬ 
tacks on the Civil Service Law and Rules. George McAneny. 

(1897.) 

Constitution of the National Civil-Service Reform League. 


Good Government: OfficialJournal of the National Civil-Service 
Reform League. Published monthly at 54 William St., New York. 
One dollar per year. Ten cents per single copy. 


For other publications, see third page 





THE LEGAL SITUATION 


The Right to Compete for Public 
Employment.; 


A PAPER 

READ AT THE ANNUAL MEETING OF 


The National Civil-Service Reform League 


CINCINNATI, OHIO, DECEMBER 17, 1897, 


BY 


EDWIN BURRITT SMITH. 

»t 


NEW YORK: 

PUBLISHED FOR THE 

NATIONAL CIVIL-SERVICE REFORM LEAGUE. 

1897. 















The Legal SituationThe Right to Compete 
for Public Employment. 


By Edwin Burritt Smith. 


George William Curtis stated the purpose of civil- 
service reformers, as early as 1869, in these words : 
‘ ‘ What we want is to intrench the principle and prac¬ 
tice of Washington in the law.” (II Orations and ad¬ 
dresses, 9.) The pioneer step to this end had been 
taken in Congress two years earlier when Thomas J. 
Jenckes presented his report on the condition of the 
civil service, accompanied by a bill to regulate the civil 
service of the United States and to promote its 
efficiency. 

This early desire to embody the proposed reform in 
the law of the land found its first expression in the 
ninth section of the sundry appropriations bill of March 
3, 1871. This measure authorizes the President “to 
prescribe such rules and regulations for the admission 
of persons into the civil service of the United States as 
will best promote the efficiency thereof, and ascertain 
the fitness of each candidate in respect to age, health, 
character, knowledge and ability for the branch of ser¬ 
vice into which he seeks to enter.” It also authorized 
the President ‘ ‘ to employ suitable persons to conduct 
said inquiries, to prescribe their duties, and to establish 
regulations for the conduct of persons who may receive 
appointments in the civil service. ” 

This prompt recognition that the proposed reform must 
find expression in the law, shows how clearly its pio¬ 
neers comprehended the nature of the mighty task to 
which they had set their hands. The story of what fol¬ 
lowed their first success in securing legal recognition of 
the reform—of the appointment by President Grant of 
an admirable commission headed by Mr. Curtis, of the 
active opposition by the spoilsmen, of the indifference 
of public sentiment, and finally in 1875 of the refusal of 




4 


appropriations by Congress and consequent suspension 
of the rules—is too well known to need recounting 
here. 

The early leaders of the reform movement, in seeking 
“to intrench the principles and practice of Washington 
in the law,” made no mistake in the remedy for the 
monstrous evils of the spoils system. They failed for 
the moment sufficiently to realize that law, to be effec¬ 
tive under free institutions, must be the command of 
popular opinion. However, to them the failure of the 
act of 1871 was only a repulse. They at once appealed 
from Congress to the people. By a few years of well- 
directed agitation they aroused and informed public 
opinion. The direct results were the national act of 1883, 
the New York act of the same year, the Massachusetts 
act of 1884, the New York constitutional provision of 
1894, the Illinois act of 1895 and recent charter provis¬ 
ions for various cities. These achievements mark the 
progress of a rising and active popular sentiment in sup¬ 
port of the merit system, which gives bright promise of 
its early extension to our entire civil service, national, 
state and municipal. 

The legal situation is just now of peculiar interest. 
In Massachusetts, where the reform of course found a 
congenial atmosphere, it has been accepted as part and 
parcel of the orthodox faith. This happy result was 
not reached without some difficulty and even litigation. 
The appointing officers and the courts were for a time 
much perplexed by the veteran preference legislation; but 
a way has finally been found to recognize two privileged 
classes, women and veterans, under legislation the gen¬ 
eral purpose of which is to open public employment to 
the free competition of all. The Supreme Court, in 
the case of Brown vs. Russell., 166 Mass., 14, early in 
1896 held the act of 1895, which required the appoint¬ 
ment of any veteran to any position for which he and 
three citizens of his selection might certify him to be 
qualified, to be unconstitutional. Thereupon, by act of 
1896, it was provided that veterans found to be qualified 
upon examination shall be preferred in appointment to 


5 


all others, except women. The act also permits ap¬ 
pointing officers to appoint or employ veterans without 
examination. This act the court, by a majority of four 
to three, has sustained, on the ground that the legisla¬ 
ture may have considered that veterans, otherwise qual¬ 
ified, are ‘ ‘ likely to possess courage, constancy, habits 
of obedience and fidelity, which are valuable qualifica¬ 
tions for any public office or employment; or that the re¬ 
cognition of the services of veterans in the way provided 
for by the statute would encourage that love of country 
and devotion to the welfare of the state which it con¬ 
cerns the commonwealth to foster.” The minority of 
the court refuse to concede that the fact of being a vet¬ 
eran bears such relation to the duties of a present office 
or employment in the civil service that it can be made 
a decisive test in the selection of persons for employ¬ 
ment, or that service in the army or navy in the late 
war is the only way to acquire special fitness for public 
employment. They say ; ‘ ‘ The important matter is 

to get the best possible service, and the selections should 
be made with reference to the qualifications or fitness 
for the performance of the duties which are to be per¬ 
formed. And, since this is so, it is not within the con¬ 
stitutional power of the legislature to fix as a decisive 
test anything which does not bear such a relation to the 
duties to be performed as to show special fitness for the 
performance of those duties;” i66 Mass. 589. It is evi¬ 
dent that the act thus sustained has at least gone to the 
extreme limit in securing a class preference by law. 

The legal situation in New York shows that the fully 
evolved spoilsman is not awed even in the presence of 
a constitutional provision. The constitution of 1894 re¬ 
quires that ‘ ‘ appointments and promotions in the civil 
service of the State, and of all civil divisions thereof, 

. . . shall be according to merit and fitness, to be ascer¬ 
tained, so far as practicable, by examination, which, so 
far as practicable, shall be competitive. ” The Court of 
Appeals, in the case of People v. Roberts, 148 N. Y. 
Rep., 148, broadly says : “The principle that all ap¬ 
pointments in the civil service must be made according 


6 


to merit and fitness, to be ascertained by competitive 
examinations, is expressed in such broad and imperative 
language that in some respects it must be regarded as 
beyond the control of the legislature, and secure from 
any statutory changes. If the legislature should repeal 
all the statutes and regulations on the subject of ap¬ 
pointments in the civil service, the mandate of the con¬ 
stitution would still remain, and would so far execute 
itself as to require the courts, in a proper case, to pro¬ 
nounce appointments made without compliance with its 
requirements illegal.” 

The same court, in the case of Chittenden v. Wurs- 
ter, 152 N. Y. Rep. 345, 358, holds that the question 
whether the examination of a candidate for a public 
position is practicable, is judicial and depends upon the 
nature and character of the duties of the position. This 
case presented the question whether a clerk to the com¬ 
mittees of the Brooklyn board of aldermen, an assistant 
warrant clerk, a dockmaster, a chief clerk, a law clerk, 
a surveyor, a finance clerk, a license fee collector, a de¬ 
partment secretary, a commissioner’s clerk and a deputy 
license clerk, are within the constitutional provision, it 
appearing that they had been appointed without com¬ 
petitive ex amination. The plaintife produced a mass of 
evidence, including examination papers, reports and 
various civil service regulations, to show that competi¬ 
tive examinations for the appointments in question are 
practicable. The defendants produced no evidence to 
show that they are impracticable. The trial justice held 
‘ ‘ that it was and is practicable to ascertain the merit 
and fitness of a person to be appointed to each of said 
positions by competitive examinations.” The Appel¬ 
late Division of the Supreme Court held that ‘ ‘none of 
these appointees fall within the debatable class, but were 
plainly susceptible of being filled by competitive exam¬ 
ination. ” (14 App. Div. Reps., 497.) 

The Court of Appeals, by a majority of four to three, 
reversed the lower courts, holding generally, that where 
the duties of a position are not merely clerical, and are 
such as especially devolve upon the head of the office. 


7 


which by reason of his numerous duties he is compelled 
to delegate to others, the performance of which require 
skill, jtidgment, trust and confidence and involve the 
responsibility of the officer or the municipality which 
he represents, the position should be treated as confi¬ 
dential. (152 N. Y. Rep., 360). 

The conclusion of the majority of the court was 
strongly contested in dissenting opinions by Judges Gray 
and O’Brien, in the first of which Chief Judge Andrews 
concurred. They pointed out that the six Justices be¬ 
low were unanimous in finding, upon uncontradicted 
evidence, that it was practicable to fill all the places in 
question by competitive examinations, and that “the 
obvious effect of the constitution was to remove the 
eleven places in question from the non-competitive 
schedule since it was practicable to fill them all by com¬ 
petitive examination. ” (152 N. Y. Rep. pp. 386, 393.) 

Judge O’Brien, in his very able dissenting opinion, cor¬ 
rectly stated the situation in these words: “-The future 
of the law which now rests upon the basis of the consti¬ 
tution is dependent upon the decision of this court. The 
decision in this case will either place the reform upon a 
reasonable and just basis, and command the approval of 
all good men, or it will be a step backward. ” (Id. p. 
389.) While the majority of the court frankly announce 
that ‘ ‘ Should time and experience prove that we are in 
error . . . we shall not hesitate to carry out the 
spirit and intent of the law” (Id. p 360.), it is to be 
remembered that the Court of Appeals must alone de¬ 
termine what the spirit and intent of the constitution 
require. 

The prevailing opinion in the Chittenden-Wiirster 
case must be regarded as a loose construction of the 
constitutional requirement that appointments and pro¬ 
motions shall be according to merit and fitness, to be 
ascertained by competitive examination, so far as prac¬ 
ticable. It is “a step backward,” by a great court, 
which had from the outset led in judicial support of the 
merit system. In the presence of a judgment so favor¬ 
able to the spoilsmen, resting as it does upon the opinio 


8 


of four of the Judges, against that of three others unani¬ 
mously supported by the six Justices of the Supreme Court 
who passed upon the case below, the Court of Appeals can 
no longer truly say, what it said in the Roberts’ case in 
speaking of the reform : ‘ ‘ This court, upon more than 
one occasion, has, with entire unanimity expressed its 
approval of the principle, and exercised all of its powers 
in every proper case in aid of all laws intended to carry 
out the idea.” (148 N. Y. Rep., 364.) If the majority 

opinion of the court is finally to prevail, the constitu¬ 
tional provision of New York, requiring competitive 
examinations so far as practicable, falls far short of the 
Illinois statute which provides that all applicants for 
positions in the classified service, from which but few 
places are excluded, “shall be subjected to examina¬ 
tion, which shall be public, competitive and free to all 
citizens of the United States, with specified limitations 
as to residence, age, health, habits and moral charac¬ 
ter. ” 

The Legislature of New York under an irresponsible 
dictatorship, has persistently neglected, since the adoption 
of the constitutiona provision of 1894, to provide ap¬ 
propriate legislation to give it full and affirmative effect, 
as commanded by the constitution itself. This neglect 
was emphasized by the passage, at the last session, of 
an act providing for two examinations to ascertain the 
‘ ‘ merit and fitness ” of candidates for appointment, one 
by the civil service commission to determine their rela¬ 
tive “merit” and one by, or under the authority of, the 
appointing officer to satisfy him as to their “fitness.” 
Each examination is to cover one-half of the rating of 
candidates. It is not in fact required that the so-called 
“examination” to ascertain “fitness” shall be competi¬ 
tive, or that it shall be public or made matter of record. 
It may be conducted by ‘ ‘ some person or board desig¬ 
nated by the person holding such power of appoint¬ 
ment. ” In plain words, this so-called examination may 
be held at the party headquarters, on the street, or in 
the comer saloon, and may be conducted by a political 
committee, the party boss, or a convenient barkeeper. 


9 


Mr. Schurz, in his powerful address of protest to the 
governor, properly suggested that holding two examin¬ 
ations to ascertain “merit and fitness” is like requiring 
two examinations by physicians to find whether one,is 
“hale and hearty,” one as to whether he is “hale” and 
the other as to whether he is “hearty.” 

The act in question is the clumsy device of spoils¬ 
men to nullify the constitution of the State. That a 
conspiracy so transparent and subversive of public order 
can succeed, is of course impossible. There is nothing 
in the history of the courts of New York to give any 
promise of success to an unlawful purpose so obvious. 
In the prevailing opinion in the Chittenden-Wurster 
case, written after the passage of this measure, the 
Court of Appeals significantly say : “ It is said that 
each officer having appointments to make could himself 
examine the applicants for position, and in that way de¬ 
termine who should be the appointee by a competitive 
examination. Undoubtedly, but it will readily be seen 
that this system would practically nullify the civil ser¬ 
vice law and bring it into disrepute.” (152 N. Y. Rep. 
p- 356.) 

The submission of the “Black Bill” to the scrutiny 
of the courts, which is soon to be made, can have but 
one result. The certain defeat of this transparent at¬ 
tempt to nullify the constitution ought to prepare the 
way for the legislation which it commands. 

The change of administration in Chicago last April 
has subjected the Illinois statute to a crucial test. Un¬ 
fortunately, the act did not go into effect until the July 
following its adoption at the city election of 1895. That 
election resulted in a change from democratic to repub¬ 
lican control. The new mayor promptly turned out 
“the gang,” as his followers not inappropriately called 
the democratic host, and installed “the boys” who were 
expected to control in his interest the republican ma¬ 
chine, now enuphonetously known as “the organization.” 
This clean sweep and substitution even extended to 
some six hundred members of the police force. Hav- 
ng thus strikingly illustrated the need, and prepared 


10 


the way, for reform, Mayor Swift appointed an excel¬ 
lent commission and thereafter cordially supported it. 
This seeming inconsistency on his part is perhaps trace¬ 
able to a desire to mark the introduction of the merit 
system by a conversion as dramatic as that of St. Paul. 
Possibly he sought at the outset of his administration to 
put temptation behind him, or to create a sort of soli¬ 
tude in which the new commission might learn its du¬ 
ties and formulate the rules required by law. What¬ 
ever the truth, the mayor thereafter sustained the com¬ 
mission while it worked out a thorough classification of 
the service, prepared adequate rules, held many exami¬ 
nations and certified a few eligibles for appointment. 
Under such conditions came the change from republican 
to democratic rule in the election of Mayor Harrison 
last spring and a clean sweep of Mayor Swift’s personal 
appointees. 

The Illinois statute is based on the national. New 
York and Massachusetts acts. It differs from the ear¬ 
lier legislation in that it is more inclusive and stringent 
in its provisions. The excluded “head or heads of any 
department” of the New York act gives place to the 
“heads of any principal department” in the statute of 
Illinois. Unrestricted removals under all prior legisla¬ 
tion give way in Illinois to removals only for cause, to 
be ascertained upon written charges after opportunity 
to the person charged to be heard. The Illinois act 
also provides that vacancies shall be filled by promotion 
where it is practicable, that promotions shall be “on 
the basis of merit and seniority of service and examina¬ 
tion,” and that “all examinations for promotion shall be 
competitive. ” 

The commissions under the Illinois statute are con¬ 
tinuous and independent bodies. Mayor Harrison, how¬ 
ever, assumed the Chicago commissioners to be his sub¬ 
ordinates, and that a majority of them should be in po¬ 
litical and personal accord with himself. Upon the re¬ 
fusal of the majority of the old commission (the other 
member having been appointed comptroller) to accept 
his construction of the words, ‘ ‘ heads of any principal 


department,” used in naming the excluded officials, to 
include some fifty heads of bureaus in the departments, 
inspectors and captains of police and various foremen 
and others, the mayor removed the two remaining 
members on frivolous charges afterwards trumped up 
to comply with a provision of the statute requiring him 
to file his reasons for such removals. The new com¬ 
mission promptly published an opinion construing the 
words, “heads of any principal department,” so as to 
exclude from the classified service most of the desirable 
positions claimed by the mayor as spoils, thus giving 
him (to use their words) “the benefit of the doubt” 
as to the positions which ‘ ‘ should be taken out of the 
classified service. ” The mayor was thus enabled to fill 
the higher places in the service with avowed and active 
enemies of the merit system, an opportunity which he 
promptly improved. His appointees, with some honor¬ 
able exceptions, in co-operation with the council, are 
doing what may be done to place the civil service law in 
a false light before the public, and—so far as practica¬ 
ble—to render it inoperative. 

The statute excludes from the classified service 
“officers .... whose appointment is subject to confir¬ 
mation by the city council. ” When the act was adopted 
but few officials, some of them of minor importance, 
were subject to such confirmation. Upon the accession 
of Mayor Harrison, it was feared by some of the best 
friends of the law that it is especially vulnerable at 
this point. Its enemies quickly sought to avail them¬ 
selves of their apparent opportunity. The council 
promptly created a considerable number of new posi¬ 
tions, making them all subject to confirmation by itself. 
The committee on civil service, on June 14, 1897, re¬ 
ported forms for four ordinances, recommending their 
passage. By these measures it was gravely proposed 
to designate as “‘heads of principal departments,’ as 
said term is used in section eleven ” of the civil service 
act, numerous “public officials” and “all employees 
of the City of Chicago, receiving $3 or less per day, as 
compensation for work;” to make “the head of each 


12 


and every department, bureau or division of work in 
the public service of Chicago,” and certain experts, pri¬ 
vate secretaries, head assistants and others, subject to 
confirmation by the council ; and to make ‘ ‘ all transfers, 
appointments, discharges and promotions in the fire 
and police departments” subject to the order of the 
mayor and approval of the council. These extraordi¬ 
nary proposals were opposed by the administration 
which was not prepared to attempt the complete nulli¬ 
fication of the statute. Two weeks later the council 
passed, as an administration measure, an ordinance 
which provides that a considerable list of “officials” 
named ‘ ‘ shall be designated as ‘ heads of principal de¬ 
partments,’ as said term is used in section eleven” of 
the civil service act. 

Some of the friends of the law, fearing these attacks 
were aimed at a vital point, deemed it wise to endeavor 
to save something by acquiescence. Others, and notably 
the Citizens’ Association, held that the way to save the 
law was to defend it against all comers. The Citizens’ 
Association retained special counsel and procured the 
Attorney-General to file petitions, on behalf of the 
people, in the Supreme Court for writs of mandamus^ 
to obtain an authoritative and final interpretation of the 
law and of the power of the city council in respect to it. 
These cases were fully presented to the court in October 
last, and early decisions are expected. The new com¬ 
mission only contended for a liberal construction of the 
words, “heads of any principal department.” The 
corporation counsel boldly attacked the constitutionality 
of the act, and defended the ordinance which seeks to 
make subordinate officials ‘ ‘ heads of principal depart¬ 
ments” merely by thus designating them. The writer’s 
relation to these cases renders improper here any 
prophecy in regard to the result. It must suffice here 
to say, that we hope for a judgment by the court 
strongly sustaining the act, with a finding that the 
, ordinance is void as unreasonable and in conflict with 


13 

the statute. * The law is supported by public opinion. 
The penalties for its violation are severe. If fully 
sustained by the court, it will be at least reasonably 
enforced. 

The President, by his executive order of July 27, 
1897, directing that removals shall be made only for 
just cause, upon written charges and opportunity to be 
heard, has raised the question whether removals should 
be controlled by law. Civil service reformers have 
hesitated to place any legal restraint upon the power of 
removal by the appointing officer for any cause satisfac¬ 
tory to him. They have assumed that such officers will 
not be apt to remove efficient subordinates to make way 
for unknown successors to be taken from the eligible 
list. As early as 1881, in his address before The 
American Science Association, Mr. Curtis said : 

‘ ‘ Removals for cause alone means, of course, 
removal for legitimate cause, such as dishonesty, negli¬ 
gence, or incapacity. But who shall decide that such 
cause exists ? This must be determined either by the 
responsible superior officer or by some other authority. 
But if left to some other authority the right of counsel 
and the forms of a court would be invoked ; the whole 
legal machinery of mandamuses, injunctions, certioreris, 
and the rules of evidence would be put in play to keep 
an incompetent clerk at his desk or a sleepy watchman 
on his beat. Cause for removal of a letter-carrier in 
the post office or of an accountant in the custom house 
would be presented with all the pomp of impeachment 
and establised like a high crime and misdemeanor. ” (II 
Orations and Addresses p. 190). 

Mr. Curtis, in his second annual address as Presi¬ 
dent of the League in 1883, also said: “We do not 
plead for fixed permanency in public place, nor assert 


* The Supreme Court of Illinois on December 22, 1897, handed 
down a strong opinion in these cases, holding the Statute to be constitu¬ 
tional and the ordinance in question void for unreasonableness. The 
court, in effect, holds that the Council has no power to add to the list of 
exclusions from the act. This decision places the Illinois act on a firm 
basis. 



14 


a vested right in public employment. Due subordina¬ 
tion and discipline are essential to all effective organ¬ 
ized service, and, therefore, dismissal for proper cause 
should be prompt and sure. To this end the power of 
removal should be left as free as possible, provided 
that motives for its illegitimate exercise are destroyed. 
Such a provision secures both proper discipline and a 
just tenure.” (Id. p. 248.) Again, in his sixth annual 
address, he said : ‘ ‘ The power of removal no less than 

that of appointment is a public trust, and it cannot be 
rightly used arbitrarily or for any other cause than the 
public interest. Such cause should be publicly assigned 
and recorded, that the people may clearly understand 
the reason of the change in service.” (Id. p. 340.) 

These passages indicate what has been the generally 
accepted view of reformers. Aside from the prohibi¬ 
tion of removals for political reasons, there was no 
attempt until recently to limit the power of removal by 
appointing officers. The framers of the Illinois act 
took the first step in advance by providing that “no 
officer or employee in the classified service . 
shall be removed or discharged except for cause, upon 
written charges and after an opportunity to be heard.” 
From this provision laborers and ‘ ‘ persons having the 
custody of public money, for the safe keeping of which 
another has given bond, ” are excepted. ‘ ‘ Such charges 
shall be investigated by or before said civil service com¬ 
mission, or . . . some officer or board appointed 

by said commission to conduct such investigation. The 
finding and decision of such commission, or investigat¬ 
ing officer or board when approved by such commission, 
shall be certified to the appointing officer, and shall be 
forthwith enforced by such officer.” (Act 1895, 
Sec. 12.) 

These provisions, it will be observed, make no 
attempt to define what causes shall be sufficient to 
justify removals. It is not believed that the act confers 
upon those in the classified service any vested right to 
continue in public employment, or to call upon the 
courts to determine whether any alleged cause of 


^5 


removal, except it be political, is sufficient to justify it. 
The intention is to protect the classified service from 
arbitrary and unjust removals by, appointing officers, 
and to prevent removals for other than causes that will 
bear public record, after opportunity to make defense. 
Under this act the commission is made publicly respon¬ 
sible for every removal from the classified service. 

The question involved in the recent decisions of 
United States courts, whether the President’s order in 
respect to removals has the force of law, is less import¬ 
ant than the question whether it ought to have such 
force. The answer to the first depends upon the extent 
of executive power under the civil service act to make 
rules that shall have the force of law. The answer to 
other must be sought in the further inquiry, whether 
public employment can be the subject of vested right, 
—whether office is a place of public service, or a castle 
to be privately held and enjoyed. 

The merit system of appointment recognizes and 
protects the right of all to compete for public em¬ 
ployment, the right of freedom of contract with 
the largest employer of skilled and unskilled labor. 
The Massachusetts act provides for the punishment of 
officials and others who shall “defeat, deceive, or 
obstrtict any person in respect of his or her right of 
examination.'' (Sec. i8). The constitution of New 
York requires all appointments to be made upon 
“examination which, so far as practicable, shall be 
competitive." The Illinois act provides that “all appli¬ 
cants for offices or places in said classified service . . . 
shall be subjected to examination, which shall be public, 
competitive and free to all citizens of the United States.^ 
with specified limitations as to residence, age, health, 
habits, and moral character.” (Sec., 6 .) 

The Supreme Court of Massachusetts, in the case of 
Commonwealth vs. Perry, 155 Mass., 117, said: “There 
are certain fundamental rights of every citizen which are 
recognized in the organic law of all our free American 
States. . . . The declaration of rights in the constitu¬ 
tion of Massachusetts enumerates among the natural 


i6 


inalienable rights of men the right ‘ of acquiring, possess¬ 
ing and protecting property.’ The right to acquire, 
possess, and protect property includes the right to make 
reasonable contracts, which shall be under the protec¬ 
tion of the law. ” 

The Supreme Court of Illinois, in the case of Brace- 
ville Coal Co, v. People,^ 147 Ill. 66, 70, said: 

“The fundamental principle upon which liberty is 
based, in free and enlightened government, is equality 
under the law of the land. It has accordingly been 
everywhere held, that liberty, as that term is used in 
the constitution, means not only freedom of the citizen 
from servitude and restraint, but is deemed to embrace 
the right of every man to be free in the use of his powers 
and faculties, and to adopt and pursue such avocation 
and calling as he may choose, subject only to the 
restraints necessary to secure the common welfare.” 

The same court, in the great case of Ritchie v. 
People^ 155 Ill., 98, 104, also said: “The privilege of 
contracting is both a liberty and property right. . . . 
The right to use, buy and sell property and contract in 
respect thereto is protected by the constitution. Labor 
is property, and the laborer has the same right to sell 
his labor, and to contract with reference thereto, as has 
any other property owner. . . . The right to labor or 
employ labor, and make contracts in respect thereto 
upon such terms as may be agreed upon between the 
parties, is included in the constitutional guaranty.” 

Thus it follows that the right of freedom of contract 
with the largest employer of labor, is a property right 
which is protected by the fundamental law. {See also 
Stimso 7 i's Handbook to the Labor Law of U, S.,p. 10, etc.;) 
that all citizens, having the proper requirements of age, 
health and character, have a property right to compete 
for public as well as private employment. It is the 
great purpose of the merit system of appointment to 
give force and effect to this fundamental right of free 
men. 

We are now ready for the inquiry, whether the right 
to compete for public employment extends, on behalf of 


17 


the successful competitors, beyond the threshold of such 
employment, there to become a vested property right in 
the office itself. Unless offices exist to be held, the 
answer must be in the negative. A fundamental princi¬ 
ple of civil service reform is that public office is a public 
trust. It is an opportunity to render a public service, 
and whatever of personal honor and profit attach to it 
is but incidental. The public has a right to the most 
efficient and devoted service, and to this end to continue 
competent and faithful officials in its employment. 
Thus the public need, not personal interest, becomes 
and is the basis and measure of a just tenure. Only in 
this view can ‘ ‘ the public service be, indeed, the public 
service,” (Gladstone)—the property of the nation, notan 
asset of a party boss or machine. 

We may, therefore, conclude that the right of com¬ 
petition for public employment is a property right of 
all; that this right is part and parcel of the fundamental 
right of freedom of contract; that a right of such import¬ 
ance ought to be given full force and effect by positive 
law. We have seen that this is the great purpose of all 
civil service legislation. It also follows, that public 
office is not properly a subject of vested right; that 
official position is an opportunity for public service, 
not a private property interest; and that its control is 
an executive, not a judicial, function. If these conclu¬ 
sions are sound, it remains for the executive to forbid 
removals except for just cause. It does not follow that 
the President’s order is less wise because it is not pro¬ 
perly enforceable by the courts. It will be to the lasting 
honor of the present administration if it shall firmly 
establish a rule of executive action to prevent removals 
without just cause. 

The evolution of modern democracy is from the 
simple and primitive groups of kinsmen, known to us 
as village communities. The crude democracy of these 
isolated communities gave way to the despotic feudal 
monarchy which molded them into the great nation 
having a definite territory, uniform laws and compara¬ 
tive freedom from local disorder. Then came the long 


i8 

struggle for a democracy which should combine the 
great advantages of a wide national authority with as 
much as practicable of the local self-government and 
personal freedom of the village community. This 
struggle is marked by a long succession of popular 
victories over despotic privilege. The spoils system in 
our day is a mercenary survival of feudal privilege. Its 
destruction will remove another barrier that stands 
between the people and their government. The merit 
system, in its purpose “to intrench the principle and 
practice of Washington in the Law,” seeks to recover a 
fundamental right of free men. To such a purpose, 
complete success is sure. It may be here and there 
delayed, but it will come. 


♦ 



Publications of the J\/ew York Civil-Service Reform Ass*n 


The Beguming of the Spoils System in the National Govern¬ 
ment, 1829-30. (Reprinted, by permission, from Parton’s “Life 
of Andrew Jackson.”) Per copy, 5 cts. 

Term and Tenure of Office. By Dorman B. Eaton. Second edition* 
abridged. Per copy, 15 cts. 

Daniel Webster and the Spoils System. An extract from Senator 
Bayard’s oration at Dartmouth College, June, 1882. 

A Primer of Civ^-Service Reform, prepared by George William 
Curtis. (English and German Editions.) 

Address of Hon. Carl Schurz in opposition to the bill to amend the New 
York Civil Service laws, commonly known as the “Black Act.” 
May 6, 1897. 

Report on the Operation of the “ Black Act.” March 21, 1898. 

Annual Reports of the Civil Service Reform Association of New 
York for the years 1883-1898 inclusive, Per copy, 8 cts. 


MISCELLANEOUS. 

United States Civil-Service Statutes and Revised Rules of May 
6, 1896. 

State Civil-Service Reform Acts of New York and Massachu¬ 
setts. 

Decisions and Opinions in Construction of the Civil-Service Laws. 

(1890) Per copy, 15 cts. 

The Meaning of Civil-Service Reform. By E. O. Graves. 

The Selection of Laborers. (In English and German Editions). By 
James M. Bugbee late of the Massachusetts Civil-Service Commission. 
Report of Select Committee on Reform in the Civil Service 
(H. R.), regarding the registration of laborers in the United States 
Service. 

Report of same Committee regarding selection of Fourth-Class 
Postmasters. 

The Need of a Classified and Non-Partisan Census Bureau — 
Report of a Special Committee of the National League. (1898) 
George William Curtis. A commemorative address by Parke Godwin, 
(Published by the Century Association). 10 cents per copy. 


(a charge is made only where the price is given.) 


Orders for the publications will be filled by George McAneny, Secre¬ 
tary, 54 William St., New York, or by G. P. Putnam’s Sons, 27 and 29 We«t 
23d St., New York, 








PRESIDENT: 

CARL SCHURZ. 

SECRETARY: 

GEORGE McANENY 

VICE-PRESIDENTS: 


TREASURER: 

A. S. FRISSELL. 


CHARLES FRANCIS ADAMS, 
AUGUSTUS R. MACDONOUGH, 
RT. REV. HENRY C. POTTER, 
J. HALL PLEASANTS. 


HENRY HITCHCOCK, 
HENRY C. LEA, 
FRANKLIN MACVEAGH, 
RT. REV, P. J. RYAN, 


WILLIAM POTTS, 


EXECUTIVE COMMITTEE: 


WILLIAM A. AIKEN, 

CHARLES J. BONAPARTE, 

SILAS W. BURT, 

EDWARD CARY, 

CHARLES COLLINS, 

LUCIUS B. SWIFT, 

RICHARD H. DANA, 

JOHN W. ELA, 

WILLIAM DUDLEY FOULKE, 

RICHARD WATSON GILDER, 

MORRILL WYMAN, 


HERBERT WELSH, 
WILLIAM G. LOW, 
DORMAN B. EATON, 
WILLIAM POTTS, 
CHARLES'RICHARDSON, 
SHERMAN S. ROGERS, 
CARL SCHURZ, 

EDWARD M. SHEPARD, 
MOORFIELD STOREY, 
EVERETT P. WHEELER, 
JR. 


Office of the League^ 


No. 54 William St.. New York 







